COMMENTARY: Navigating the different meanings of 'disability' in employment law

By J.J. Conway

Few areas in employee benefits law are as confusing as trying to correctly understand the legal meaning of the term "disability." Many lawyers struggle with the concept as much as their clients do. There is a legal difference between a "disability," that is an actual characteristic of a person, and a "disability," which is an occupational condition by which a person is unable to work.

In law, a "disability" means so many things that it is difficult to keep the meanings straight. For lawyers advising clients with their employment-related questions, it is worth considering the differences, so that the advice given is accurate and actually helpful.

Often, a call from a prospective client will begin, "I was fired while I was on disability, and I want to know if this is discrimination." Or, a potential client may say, "I have been on disability leave and I can't return to work, but my employer denied my request for an accommodation." In both instances, with a few exceptions, the employer did not violate the employees' rights. In this area, in particular, sometimes something that sounds illegal is legally permissible. To explain why, let's begin with the legal basics.

When the term "disability" is used in reference to an individual with a natural or developed condition that limits certain major life activities, it carries with it a protected status under law. For example, a person with protected status would include someone who was born visually impaired or someone who is paralyzed after an accident. Depending on an employer's size, an employee (or prospective employee) would have a protected status under Michigan law and federal law. In Michigan, the applicable law is the Persons with Disabilities Civil Rights Act, M.C.L. § 37.1201, and under federal law, the applicable law is the Americans with Disabilities Act. 42 U.S.C. §12101.

Under these disability laws, the legal protections flow from the person's status. The PWDCRA and the ADA protect individuals from discrimination on the basis of a "disability" in the terms, conditions, and benefits of their employment, among other things. The purpose of these laws is to protect the job rights of employees who are disabled and to encourage the hiring of those with disabilities. They are designed to bring employees with disabilities into the workforce in greater numbers.

If a candidate for employment, or a current employee, is most qualified for a position at an organization and a requested accommodation is reasonable in cost and implementation, then the person should be provided an opportunity to work for an organization. Here, the employee may have a serious health condition, but that condition does not actually prevent them from working. When an employee wants to work - either by being hired or remaining on the job - and has been denied the opportunity, this is a potential disability discrimination case.

Another type of "disability" concerns the actual ability to work. In this context, "disability" means an inability to work or remain on the job. This is an occupational disability. Here, an individual cannot work entirely or is able to work on a part-time basis only. This occupational status is attributable to some type of illness or injury that happens while they are already working. In other words, the disability arises during employment.

Here, the disability inquiry is focused on the benefits to which the employee is entitled. If the employee must cease working, then perhaps the employee has access to disability insurance or an employee benefit plan that will assist them while they are off work. These rights are often protected by contract law or claims brought under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001. Here, once a disability is claimed, the employee may never return to work. If the employee is terminated, there may be no legal recourse under the PWDCRA or ADA since the condition for which they are off work prevents them from working in the future.

Given these contrasting concepts of disability, there are still some overlaps in the law. For example, in a workers compensation case or even a long-term disability case, an employee who became ill or injured may have a resultant "disability" that is protected under the PWDCRA or the ADA. If they return to work after a medical leave period, they may continue to work, albeit in a protected job status under the PWDCRA or ADA. These same employees may have had an occupational disability at one point and collected disability payments.

Similarly, a person with either a characteristic disability or an occupational disability may be able to claim rights for different reasons under Family and Medical Leave Act rights and COBRA. Like most things in law, a simple phrase may have many different legal meanings. Figuring out precisely what "disability" is involved can quickly help a client understand which rights are at stake and which are not.
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and founder of J.J. Conway Law in Royal Oak.